Suppose a landlord commits a serious violation of environmental laws that renders leased property unsafe for tenants to occupy. What legal remedies would the tenant have against the landlord? Here’s a scenario based on a recent federal case from Pennsylvania that sheds some light on this important question with regard to the federal Clean Air Act (CAA).

The CAA empowers the U.S. Environmental Protection Agency (EPA) to establish regulations to protect the general public from air pollution, including asbestos emissions. Among other things, those regulations (National Emission Standards for Hazardous Air Pollutants; Asbestos NESHAP Revision, 55 Fed. Reg. 48,406) require landowners and operators to notify the EPA of demolition or renovation work that may result in the release of asbestos at least 10 days in advance.

SITUATION

A landlord hires a contractor to perform repairs on the roof of an office building. Both sides are aware that there are asbestos-containing materials (ACMs) on the roof, but neither provides the 10-day notice required by the NESHAP regulations. Sure enough, the contractor disturbs ACMs, resulting in the release of asbestos into the offices below. The office tenant occupying that space performs testing, revealing that the air inside the space contains dangerous levels of asbestos. As a result, the tenant is forced to vacate the space. The tenant then sues the landlord and contractor for money damages, asserting three causes of action:

• Violating the CAA asbestos reporting regulations;
• Negligence per se based on the CAA violation; and
• Ordinary negligence.  

QUESTION #1

Does the tenant have a valid CAA claim for money damages?  

ANSWER

No. The CAA doesn’t give private individuals the right to sue for money damages. As with most environmental and regulatory laws, the CAA is designed to protect the public and not redress individual harms. Accordingly, the government has sole responsibility to enforce the law. Bottom Line: Even if the landlord and contractor did violate the law, the tenant doesn’t have a valid CAA claim.

QUESTION #2

Does the tenant have a valid claim for negligence per se?

ANSWER

No. There are four things a person must prove to make out a case for per se negligence:

1. The defendant owed the person a duty of reasonable care;
2. The defendant violated that duty, i.e., committed negligence;
3. The defendant’s negligence was the “proximate” or legal cause of the person’s injury; and
4. The person suffered actual loss or damage as a result of the injury.

So-called negligence per se bears on the second element. Basic Rule: The fact that the defendant violates a statute or regulation is definitive proof of negligence. But the theory doesn’t work in this case. For one thing, courts don’t recognize violation of a statute as the basis of negligence per se where the purpose of the statute is to ensure individuals rights or privileges to which they’re entitled only as members of the public. In other words, for negligence per se to apply, the tenant would have to be part of a special group the CAA law is designed to protect.

Even if the landlord and contractor did commit negligence per se, the tenant would still have to prove that the violation—that is, failure to notify the government of the asbestos work—was the proximate cause of its injury. The court in this case contended that the tenant failed to furnish evidence supporting such an assertion.

QUESTION #3

Does the tenant have a valid claim for standard negligence?

ANSWER

Yes. While failure to meet CAA notification requirements doesn’t support per se negligence in this case, the tenant is on firmer ground in alleging that the landlord and contractor committed negligence in the way they carried out the roofing work and failed to warn persons that the work might potentially affect. So, the court left the door open for the tenant to rewrite the complaint and provide further facts and evidence supporting its validity, especially with regard to whether the landlord’s contractor owed the tenant a duty of care [Moxie Ate LP v. Bostwick Design P’ship, 2022 U.S. Dist. LEXIS 162650, 2022 WL 4120626].

TAKEAWAY

It’s fair to wonder why the tenant in Moxie relied on environmental and negligence laws, rather than its remedies under the lease to go after the landlord. One problem is that like in most states, Pennsylvania doesn’t recognize implied warranties of habitability in commercial leases. However, the tenant might have been able to make a case for constructive eviction, to the extent the asbestos release rendered the leased premises unusable for its intended purpose, and/or breach of the landlord’s duty to repair unsafe conditions.